Trespassing law may turn more illegal immigrants into citizens

Arizona’s new immigration law may have been aimed at deporting as many illegal immigrants as possible, but an ironic side effect will allow more undocumented residents to apply for temporary work visas and permanent U.S. citizenship, according to research by the Arizona Capitol Times.

The new law will add to a processing backlog that already has caused federal authorities to release an increasing number of illegal immigrants back into the U.S. to await deportation hearings. And if nationwide figures can be applied to Arizona, one in four of those who are released from federal custody fail to appear in court.

The arrest-and-release policy is a little-known part of federal immigration law that allows illegal immigrants to challenge deportation and obtain legal residency, and a driver’s license, as long as they meet certain conditions. If more illegal immigrants are apprehended and processed through the federal system – which is expected to happen after Arizona’s immigration law takes effect on July 29 – then an even greater number would qualify for legal status.

“In a sense, it’s like there’s some incentive to get caught,” said Tucson immigration attorney Maurice Goldman. “Theoretically, more people would end up in front of immigration judges, which means more would get released.”

Right now, federal immigration courts are backed up so severely that it can take as many as five years to schedule trials for illegal immigrants who challenge deportation, and the U.S. Immigration and Customs Enforcement (ICE) facilities are so overloaded that thousands of illegal immigrants are released back into Arizona each year to live and work while waiting for a deportation hearing.

More than 5,100 illegal immigrants who were processed through federal immigration courts in Arizona were released from custody on bond in 2009, and the vast majority were eligible for work authorization documents, although precise figures were not available.

In some cases, illegal immigrants may be granted some form of relief, including permanent citizenship, after they’ve been turned over to ICE.

Last year, federal judges granted legal residency to 29,000 illegal immigrants nationwide. In Arizona, more than 3,600 immigration hearings were initiated by an application for relief, and more than 900 illegal immigrants were granted temporary residency or permanent citizenship.

The ~Arizona Capitol Times~ research for this special report included dozens of interviews with immigration attorneys, state lawmakers and officials at several federal immigration agencies, as well as documents obtained through public records requests to ICE and the Executive Office for Immigration Review, the official name of the federal immigration court system.

Several important immigration statistics were not available because ICE and the federal courts said they don’t keep track of the number of illegal immigrants apprehended each year in Arizona by federal, state or local law enforcement agencies. Nor do they track the number of illegal immigrants who accept “voluntary departure” and agree to forego an immigration hearing.

Gaps in federal records and the unknown effects of the state’s immigration law make it impossible to pinpoint how many more illegal immigrants will be granted relief or released on bond as a result of the passage of Sen. Russell Pearce’s S1070, which was signed into law on April 23. But several immigration attorneys who practice in Arizona said both figures likely will skyrocket.

“I call SB1070, ‘Russell Pearce’s guest-worker program.’ You’ll have so many people who will be eligible (for release) and employment authorization documents,” said Kevin Gibbons, an immigration attorney who ran unsuccessfully against Pearce for the District 18 Senate seat in 2008.

Pearce said the law he drafted is a good one, even though it will result in legal residency for more illegal immigrants. Most illegal immigrants will leave the state without further provocation for fear of being arrested, he said.

“It will save us hundreds of millions of dollars. That’s good for the taxpayer,” he said. “The benefits so outweigh (the work permits).”

Federal immigration proceedings often do not happen quickly. When an illegal immigrant is picked up and ICE takes custody of the person, a background check determines whether the immigrant will be deported or sent to court for a deportation hearing. Deportation occurs quickly – usually within 24 hours – if the person had been deported previously, or if he or she has committed an aggravated felony, such as rape or drug trafficking.

Illegal immigrants with clean records are usually transported to one of the two ICE facilities in central Arizona – a federal detention center is in Florence, and a private facility is in Eloy – to await a hearing before an immigration judge. Once removal proceedings begin, illegal immigrants can petition for relief and become eligible for a release from detention, work documents and even a driver’s license.

Federal judges then determine whether to hold illegal immigrants in ICE custody or release them, either with a bond or on their own recognizance. Bond amounts typically range between $3,000 and $5,000, though it can be higher if the immigrant has a criminal record.

However, because of overcrowding at the federal facilities in Arizona, which combine to hold only about 1,900 people, ICE often releases immigrants on bond without waiting for a judge.

“Up until four or five months ago, what (ICE) was doing was sending (immigrants) to Florence or Eloy and they would get put in front of a judge,” Goldman, the Tucson immigration attorney, said. “Recently, ICE has been releasing people on bond without sending them up there.”

ICE spokesman Vincent Picard confirmed that his agency has been releasing more illegal immigrants on bond to avoid adding to the backlog in federal court and the overcrowding at ICE facilities. He said the ICE facilities in Arizona also hold illegal immigrants apprehended in California, Utah, Nevada and other nearby states with overcrowded federal facilities.

According to federal court records, 4,610 illegal immigrants who were released from federal custody failed to appear in court in 2009. That number represents 22 percent of all illegal immigrants who were released on bond and were expected to appear in court last year. Figures for those released by federal courts in Arizona were not available.

Many of the illegal immigrants who are given temporary residency while awaiting a hearing also qualify to apply for permanent residency. Often, that is done by applying for one of the forms of relief outlined in federal law, the most common of which is called “cancellation of removal.”

The standard for cancellation of removal is high, Goldman said. Immigrants must prove they have lived in the U.S. for at least 10 consecutive years, demonstrate “good moral character,” pass a criminal background check showing no felony convictions, and establish that deportation would result in an “exceptional and extremely unusual hardship” to a spouse, parent or child who is a citizen or legal permanent resident.

Phoenix immigration attorney David Asser said he believes many of the illegal immigrants who live in the state would qualify for cancellation of removal.

“There are a lot of people, I think, who would qualify for this form of relief, but they haven’t been picked up (by ICE) yet,” he said. “People who come through my door have been here a long time and have U.S.-citizen kids, or even grandkids. They qualify to at least apply for this category of relief.”

Illegal immigrants who are released on bond may receive temporary work visas that are valid for one year. In many cases, the one-year visas are extended several times due to the backlog in federal immigration courts, which have been overcrowded for years because there are only five immigration judges in the state – three in Phoenix and two in Tucson.

Already, final hearings in cases are being scheduled for 2013 and beyond. During that time, the immigrants released from custody are able to stay in the country and work legally.

Gibbons, the immigration attorney from Mesa, said he has a case already scheduled for February 2014. But that’s only for a final determination hearing, and doesn’t account for the time it takes to present evidence to the judge and conduct initial hearings.

“I’m (scheduled) out four years, but I didn’t tell you how long that case has been going to that point. I may have a year, year-and-a-half in (the case) already,” he said.

The delays in the system will only get worse if local law enforcement officers begin rounding up illegal immigrants and turning them over to ICE to begin deportation proceedings, said Asser, the attorney from Phoenix.

“If you’re putting in an extra 1,000 people, it may take five years,” he said. “If you’re talking about the entire illegal population of Phoenix, it may be 2035. Who knows?”

Pearce said the log jam in the immigration courts is the fault of immigration attorneys.
“They tie up the system and play games. They fabricate issues or exaggerate issues,” he said. “It’s a system designed by attorneys to benefit the system, and they clog the system.”

But Gibbons defended the system, saying Pearce and other politicians concerned about the court backlog should fight for more money for the courts.

“They don’t take the money into account. They don’t realize that funding drives everything,” he said.

As it stands now, the system will continue to be slow-moving. The federal government has given no indication so far that it plans to spend more money on immigration courts or enforcement efforts along Arizona’s border with Mexico.

All the while, many of those detained under the nation’s toughest illegal-immigration-enforcement law would be living with their families and working in the state just as legally as those who crafted the law.

30 comments

It’s a pleasure to see some real investigative reporting, rather than reporters simply mimicking what the interviewed person is “selling.” Asking hard questions to clarify the issues fulfills the media’s obligation to inform, and justifies First Amendment protections.

Today, the media, especially TV, has often become another entertainment vehicle rather than a news agency, bowing to corporate marketing pressures. I think all those investigative reporters should watch the excellent movie on exposing “tobacco is a drug,” “The Insider.”

This article was very informative. Excellent Journalism. I do happen to support CIR but it is sad that an undocumented immigrant has can potentially gain legal status only because our court system is slow. I think it would be much better to amend our immigration laws in order to legalize the current undocumented immigrant population while securing our borders and setting up a fair and balanced system of immigration. Maybe we can employ some of those undocumented immigrants in the nation’s new and improved immigration system (after we legalize them, of course(-:

Build the–REAL–Fence(s) Not the half built construction they have deceived the American public with? The–REAL–fence is TWO FENCES. The first one separating American sovereignty from Mexico, than a 1000 yard gap. After which another equally high chain-link fence with its top covered with razor wire. The 2000 mile border fence designed by Rep.Duncan Hunter is now an albatross to the Obama government that cut-off funding to further its construction. This suggests to me their was no endeavor to actually complete the–REAL BORDER FENCES? The ideology behind this was the no-mans land for the US Border Patrol to have instant contact with unauthorized entry between both barrier fences on a two lane track. This is a sad response of our own government to stop drug smugglers and the movement of foreign nationals spilling across the border. This underfunding and intentional refusal to construct the fencing to foreign nationals, has caused the chronic mess in the Border state of Arizona. Unable to suffer the indignities of unparalleled rising crime rate cause by the influx of illegal aliens, Arizona has been forced into this position to benefit its legal residents with a harsh new law. Decide for yourself, whether to combat illegal immigration in the coming months. Learn who should and should not be reelected in future elections at NumbersUSA. Everybody should remember that Sen.Harry Reid (D-NV) has been a chief instigator of shoving Immigration overhaul down our throats and–MUST–be removed from office, so he cannot do any more damage with his pro-amnesty friends. Further–realize the Arizona immigration policing law, is no different from Federal laws and neither the ACLU, or any other anti-American open border entity will not stop the inception of Arizona statutes. The issue is now boiling over and stupid California (The Sanctuary State) boycotts are having a backlash and although much of the Liberal oriented press have done the bidding of ethnocentrism caucuses, public opinion is proving Arizona policies are correct. Other states are carefully perusing Arizona law and will be drafting similar laws when assemblies are in session.

Ought not the fact that you broke a federal law by coming in illegal make you unable to become a citizen since you are by definition a felon? We need some measure of common sense here, make the illegal unable to get the legal status of their caught, and do two things.

First deport them immediately, and secondly, enter their information into a database. If caught again, and they are on the database, they get prison and have to do some kind of work to pay for their incarceration until the cost is covered, and deport them again. We have a lot of coal mines that they could work in, and the present coal workers could take the usually better paying jobs the illegals had! Or, they could do a stint in the US military for for say six years as front line soldiers to earn citizenship, men and women!

Illegals are ruining the structure of this country by overloading courts and ER’s, using the system instead of joining the system as a citizen.

Arizona should print up maps to SF , Austin , Chicago etc with their statements that they welcome rather than ID illegal immigrants. AZ should consider offering bus tickets to all boycott cities for illegals rather than jail time . They might have charters to make sure the individuals do not stop off and use the money that would have been spent on jail time for the bus and sandwiches.

OK! The issue is getting a handle on who is here. If the illegal goes to federal court they will have to prove who they are and where they are from. If they have already amassed a criminal record, they will be detained not released. If they are issued legal status documention, so be it, at least they are now documented and will be on the tax roles like the rest of us. They will have their own ssn rather than a stolen one. Most importantly they will be identified as legal aliens, that status will preclude them from voting. When the Democrats figure that one out they will raise holy h**l about how the law is being enforced.

I still hope that Obama will wise up and realize the necessity of this strict measure. There are people who worked hard to get the official documents and come to the country legally. So, justifying illegals, we do offend those who obey the law. Is it correct? Air your opinion and vote in support of Arizona bill or against it at http://immigration.civiltalks.com/b.
Your comments count.

So let me get this straight. Someone breaks into my home, and the police come and take him away. But the judge is a little busy at the moment, so the police return him to my home and force me to give him the family silver and perhaps, eventually, even the title to my home. Oooookay.

3 decades ago the INS was the department where government incompetents who could not be fired were sent. Those bureaucrats are now way over their level of competence. Thus we see they have no statistics on the populace they are supposed to track.

Yet the comprehensive Health Bill will create 159 new government bureaus.

What you can’t do is blame the lawyers for this debacle. I know it feels good to beat up on lawyers, but, believe me, they are the ones adding more light than heat here. As slow as the resolution of an immigration case is WITH a lawyer, it is about twice as slow WITHOUT a lawyer.

This article absolutely blew me away.
It is the only article I read with this information.
I had no idea that catching more illegal immigrants would mean more would become citizens.
Can’t anyone stop this release program?
It should be considered unconstitutional. How is this release program even legal? This makes no sense to me how ICE can release known illegal immigrants.
I hear the federal govt. talk about empathy and compassion for the illegal immigrants, who are foreigners that have broken the law.
Where is the empathy for the law-abiding Arizonans and Americans?
Are we being punished because of the color of our skin?
Is this still America? I have to pinch myself to believe it is.
I love USA. I love Illinois. I love Arizona. I do not want to see America turn into Mexico. Or the Middle East.
By the way, I am an Illinoisan in full support of the new Arizona law.
To the people who want to boycott Arizona, they should boycott Illinois, too, because there are people like me and my friends in Illinois who want to deport all illegal immigrants.
Arizonans who support this law, know that there are people from other states, including Illinois, who back you, regardless of what our reps say.
In all honesty, I do not trust our reps anymore. I do not trust Obama.
I do not trust them because Obama and our reps want to bring the Guantanamo Bay detainees- the people who hate us most in the world- to Illinois, which will make us a terror target.
Not long ago, Illinois had a secret release program, in which thousands of inmates were secretly let out. Only Quinn and a few select individuals knew about it. OUr system is broken, disconnected and misrepresented.
I was sad the day Obama and our Illinois reps sold us out and I am still sad.
I miss the days when our President and reps cared more about Americans than foreigners and illegal immigrants.
Those days are gone. I will never forgive Obama and our reps.

This is GREAT!! Drivers licenses, work permits and citizenship! Nice work AZ! Yes, I think all states should emulate your new law! Az lawmakers passed this law without any consideration of the consequenses. Its effect on law enforcement, how much it’s going to cost to hold, feed, clothe and prosecute anyone arrested. Now this …. drivers licenses! Too funny! Kharma creeping up on AZ!

Thanks for focusing attention on this unwanted side-effect! I just found this post in google and frankly I had never considered that once the Invaders get into court, Liberal judges can grant them the right to stay, which is the opposite of the intended effect.

At least if they had to sit in detention until the slow-moving process is complete, instead of posting bail, we’d have them off the streets and they couldn’t make more anchor-babies.